NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A506
SPONSOR: Paulin (MS) TITLE OF BILL:
An act to amend the penal law, the criminal procedure law, the social
services law, the civil practice law and rules, the mental hygiene law,
the correction law, the vehicle and traffic law, the public health law,
the real property actions and proceedings law, and the real property
law, in relation to enacting the "trafficking victims protection and
justice act"; to amend the penal law, in relation to prostitution in a
school zone; to amend chapter 74 of the laws of 2007 amending the penal
law, the criminal procedure law, the correction law, the social services
law, and the executive law relating to human trafficking, in relation to
extending the interagency task force on human trafficking for four
years; and to amend the executive law, in relation to human trafficking
awareness
PURPOSE:
This bill would improve the State's response to human trafficking and
increase the accountability of buyers and traffickers by, among other
things: (i) conforming the ages of victims in certain prostitution
offenses under Article 230 of the Penal Law to the ages of victims of
rape offenses under Article 130 of the Penal Law; (ii) making sex traf-
ficking a Class B violent felony and certain cases of labor trafficking
a Class D violent felony, and creating the new offense of aggravated
labor trafficking; and (iii) creating three aggravated patronizing
offenses where the person patronized is a minor: aggravated patronizing
a minor for prostitution in the third degree, a Class E felony; aggra-
vated patronizing a minor for prostitution in the second degree, a Class
D felony; and aggravated patronizing a minor for prostitution in the
first degree, a Class B felony. This bill would also improve the school
zone prostitution law by adding as a Class E felony the offense of
patronizing a person for prostitution in a school zone. The legislation
also provides a civil remedy to victims to recover damages and reason-
able attorney's fees from their perpetrators. Further, the bill provides
for increasing awareness among law enforcement regarding identifying
human trafficking victims and referral of services to victims by requir-
ing the superintendent of police, in consultation with the office of
temporary and disability assistance (OTDA) and the division of criminal
justice services (DCJS), to develop and disseminate to all members of
the state police written policies and education materials relating to
human trafficking victims and to establish and implement written proce-
dures in the event state police encounters an individual believed to be
a human trafficking victim.
Additionally, the bill eliminates the term "prostitute" used in the
Penal Law and replaces it with "person for prostitution."
SUMMARY OF PROVISIONS:
Section 1 provides that the act shall be known and may be cited as the
"trafficking victims protection and justice act".
Section 2 amends section 60.13 of the Penal Law, as added by Chapter 7
of the Laws of 2007, to add aggravated patronizing a minor for prostitu-
tion in the third degree as defined in section 230.11, aggravated
patronizing a minor for prostitution in the second degree as defined in
section 230.12, and aggravated patronizing a minor for prostitution in
the first degree as defined in section 230.13, as felony sex offenses.
Section 3 amends paragraphs (a) and (c) of subdivision 1 of section
70.02 of the Penal Law, paragraph (a) as amended by Chapter 320 of the
Laws of 2006, and paragraph (c) as amended by Chapter 1 of the Laws of
2013, to add sex trafficking as defined in paragraphs (a) and (b) of
subdivision five of section 230.34 of the Penal Law as a Class B violent
felony offense, and to add labor trafficking as defined in paragraphs
(a) and (b) of subdivision three of section 135.35 of the Penal Law as a
Class D violent felony offense.
Section 4 amends paragraph (a) of subdivision 1 of section 70.80 of the
Penal Law, as added by Chapter 7 of the Laws of 2007, to add patronizing
a person for prostitution in the second degree, aggravated patronizing a
minor for prostitution in the third degree, aggravated patronizing a
minor for prostitution in the second degree and aggravated patronizing a
minor for prostitution in the first degree as felony sex offenses.
Section 5 amends section 135.35 of the Penal Law, as added by Chapter 74
of the Laws of 2007, to delete as a ground for the offense of labor
trafficking unlawfully providing a controlled substance to a person with
intent to impair such person's judgment.
Section 6 amends the Penal Law by adding a new section 135.37 to create
the offense of aggravated labor trafficking, a Class C felony. A person
is guilty of aggravated labor trafficking if he or she compels or
induces another to engage in labor or recruits, entices, harbors, or
transports such other person to engage in labor by means of inten-
tionally unlawfully providing a controlled substance to such person with
intent to impair such person's judgment.
Section 7 amends paragraph (a) of subdivision 1 of section 460.10 of the
Penal Law, as amended by Chapter 37 of the Laws of 2014, by adding to
the list of felonies that are defined as a "criminal act" aggravated
labor trafficking under section 135.37 of the Penal Law.
Section 8 amends paragraphs (b) and (h) of subdivision 8 of section
700.05 of the Criminal Procedure Law, paragraph (b) as amended by Chap-
ter 405 of the Laws of 2010, and paragraph (h) as amended by Chapter 154
of the Laws of 1990, by adding as a "designated offense" in the list of
felonies aggravated labor trafficking under section 135.37 of the Penal
Law, and the offense of promoting prostitution in the third degree, as
defined in section 230.25 of the Penal Law.
Section 9 amends the Penal Law by adding a new section 230.01 to provide
for an affirmative defense in any prosecution under section 230.00,
section 230.03 or section 240.37(2) of the Penal Law that the defend-
ant's participation in the offense was a result of having been a victim
of compelling prostitution under section 230.33 of the Penal Law, a
victim of sex trafficking under section 230.34 of the Penal Law or a
victim of trafficking under the federal Trafficking Victims Protection
Act.
Section 10 amends section 230.02 of the Penal Law, as amended by Chapter
627 of the Laws of 1978, to replace the term "prostitute" with "person
for prostitution" and to make the section gender neutral.
Section 11 amends subdivision 2 of section 230.03 of the Penal Law, as
added by Chapter 191 of the Laws of 2011, to provide that the definition
of school zone also applies for purposes of section 230.08, patronizing
a person for prostitution in a school zone.
Section 12 amends section 230.04 of the Penal Law, as amended by Chapter
74 of the Laws of 2007, to replace the term "prostitute" with "person
for prostitution."
Section 13 amends section 230.05 of the Penal Law, as amended by Chapter
627 of the Laws of 1978, to provide that a person is guilty of patroniz-
ing a person for prostitution in the second degree when being 18 years
old or more, he or she patronizes a person for prostitution and the
person patronized is less than 15 years old. Current law provides that
a person is guilty of this offense where he is over age 18 and the
person patronized is less than 14 years old. The section also replaces
the term "prostitute" with "person for prostitution" and makes the
section gender neutral.
Section 14 amends section 230.06 of the Penal Law, as added by Chapter
627 of the Laws of 1978, to add that a person is guilty of patronizing a
person for prostitution in the first degree when being 18 years old or
more he or she patronizes a person for prostitution and the person
patronized is less than 13 years old. The section also replaces the term
"prostitute" with "person for prostitution" and makes the section gender
neutral.
Section 15 amends section 230.07 of the Penal Law, as amended by Chapter
74 of the Laws of 2007, to provide that the defense under said section
applies in a prosecution for patronizing a person for prostitution in a
school zone.
Section 16 amends the Penal Law by adding a new section 230.08 to
provide a new offense, patronizing a person for prostitution in a school
zone. A person is guilty of patronizing a person for prostitution in a
school zone when, being 21 years old or more, he or she patronizes a
person for prostitution and the person patronized is less than 18 years
old at a place that he or she knows, or reasonably should know, is in a
school zone. Patronizing a person for prostitution in a school zone is a
Class E felony.
Section 17 amends section 230.10 of the Penal Law to replace the term
"prostitute" with "person for prostitution."
Section 18 amends the Penal Law by adding three new sections 230.11,
230.12 and 230.13. New section 230.11 creates the new offense of aggra-
vated patronizing a minor for prostitution in the third degree. A
person is guilty of aggravated patronizing a minor for prostitution in
the third degree when, being 21 years old or more, he or she patronizes
a person for prostitution and the person patronized is less than 17
years old and the person guilty of patronizing engages in sexual inter-
course, oral sexual conduct, anal sexual conduct, or aggravated sexual
conduct, with the person patronized. Aggravated patronizing a minor for
prostitution in the third degree is a Class E felony.
New section 230.12 creates the new offense of aggravated patronizing a
minor for prostitution in the second degree. A person is guilty of
aggravated patronizing a minor for prostitution in the second degree
when, being 18 years old or more, he or she patronizes a person for
prostitution and the person patronized is less than 15 years old and the
person guilty of patronizing engages in sexual intercourse, oral sexual
conduct, anal sexual conduct, or aggravated sexual conduct, with the
person patronized. Aggravated patronizing a minor for prostitution in
the second degree is a Class D felony.
New section 230.13 creates the new offense of aggravated patronizing a
minor for prostitution in the first degree. A person is guilty of aggra-
vated patronizing a minor for prostitution in the first degree when he
or she patronizes a person for prostitution and the person patronized is
less than 11 years old, or the person patronized is less than 13 years
old and the person patronizing a person for prostitution is 18 years old
or more, and in either case the person guilty of patronizing engages in
sexual intercourse, oral sexual conduct, anal sexual conduct, or aggra-
vated sexual conduct, with the person patronized. Aggravated patronizing
a minor for prostitution in the first degree is a Class B felony.
Section 19 amends subdivisions 1 and 2 of section 230.15 of the Penal
Law to replace the term "prostitute" with "person for prostitution" and
makes the section gender neutral.
Section 20 amends subdivision 1 of section 230.19 of the Penal Law, as
added by Chapter 191 of the Laws of 2011, to make a technical language
change.
Section 21 amends the opening paragraph and subdivision 1 of section
230.25 of the Penal Law, the opening paragraph as amended by Chapter 627
of the Laws of 1978 and subdivision 1 as amended by Chapter 74 of the
Laws of 2007, to replace the term "prostitute" with "person for prosti-
tution" and makes the section gender neutral.
Section 22 amends section 230.30 of the Penal Law, as amended by Chapter
627 of the Laws of 1978, to provide that a person is guilty of promoting
prostitution in the second degree when he or she knowingly advances or
profits from prostitution of a person less than 18 years old, rather
than 16 years old under current law. This section also makes said
section 230.30 gender neutral.
Section 23 amends section 230.32 of the Penal Law, as added by Chapter
627 of the Laws of 1978, by providing that a person is guilty of promot-
ing prostitution in the first degree when he or she knowingly advances
or profits from prostitution of a person less than 13 years old, in lieu
of less than 11 years old, or being 21 years old or more, he or she
knowingly advances or profits from prostitution of a person less than 15
years old.
Section 24 amends section 230.33 of the Penal Law, as added by Chapter
450 of the Laws of 2005, by providing that a person is guilty of compel-
ling prostitution when, being 18 years old or more (in lieu of 21 years
old or more), he or she knowingly advances prostitution by compelling by
force or intimidation a person less than 18 years old (in lieu of less
than 16 years old), to engage in prostitution.
Section 25 amends section 230.35 of the Penal Law, as amended by Chapter
450 of the Laws of 2005, by providing that in a prosecution for promot-
ing prostitution or compelling prostitution, a person less than 18 years
old from whose prostitution activity another person is alleged to have
advanced or attempted to advance or profited or attempted to profit
shall not be deemed to be an accomplice. Current law provides that a
person less than 17 years old under such circumstances shall not be
deemed an accomplice.
Section 26 amends section 230.40 of the Penal Law to add that a person
is guilty of permitting prostitution when, having possession or control
of a vehicle that he or she knows is being used for prostitution or for
the purpose of advancing prostitution, he or she fails to make reason-
able effort to halt or abate such use.
Section 27 amends subdivision 2 of section 240.37 of the Penal Law, as
added by Chapter 344 of the Laws of 1976, and adds a new subdivision 3
to add that any person who remains or wanders about in a public place
and repeatedly beckons to, or repeatedly stops, or repeatedly attempts
to stop, or repeatedly attempts to engage passers-by in conversation, or
repeatedly stops or attempts to stop motor vehicles, or repeatedly
interferes with the free passage of other persons, for the purpose of
patronizing a person for prostitution is guilty of a violation and is
guilty of a Class B misdemeanor if such person has previously been
convicted of a violation of this section or of sections 230.04, 230.05,
230.06 or 230.08 of the Penal Law.
Section 28 amends subdivision 6 of section 380.50 of the Criminal Proce-
dure Law, as amended by Chapter 320 of the Laws of 2006, to add to the
list of enumerated offenses for which a defendant is sentenced offenses
under sections 230.11, aggravated patronizing a minor for prostitution
in the third degree, 230.12, aggravated patronizing a minor for prosti-
tution in the second degree, and 230.13, aggravated patronizing a minor
for prostitution in the first degree, wherein the prosecutor shall,
within 60 days of the imposition of sentence provide the victim with a
form on which the victim may indicate a demand to be informed of any
petition to change the name of such defendant.
Section 29 amends paragraph (i) of subdivision 1 of section 440.10 of
the Criminal Procedure Law, as added by Chapter 332 of the Laws of 2010,
to add to the ground upon which the court may vacate judgment where the
judgment is a conviction where the arresting charge was under section
230.03 of the Penal Law (prostitution in a school zone), and the defend-
ant's participation in the offense was a result of having been a victim
of labor trafficking under section 135.35 of the Penal Law, aggravated
labor trafficking under section 135.37 of the Penal Law, or compelling
prostitution under section 230.33 of the Penal Law in addition to sex
trafficking under section 230.34 of the Penal Law or trafficking under
the federal Trafficking Victims Protection Act. The section further
makes reference to compelling prostitution in connection with the
requirements of the motion and the presumption that a defendant's
participation in the offense was a result of having been a victim of sex
trafficking, compelling prostitution or trafficking in persons.
Section 30 amends section 483-bb of the Social Services Law by adding a
new subdivision (c) to provide for the ability of a victim of conduct
prohibited by section 230.33, 230.34, 135.35 or 135.37 of the Penal Law
to bring a civil action to recover damages and reasonable attorney's
fees against the perpetrator or whoever knowingly advances or profits
from, or whoever should have known he or she was advancing or profiting
from, an act in violation of any of such sections.
Section 31 amends section 212 of the Civil Practice Law and Rules by
adding a new subdivision (e) to add to the actions to be commenced with-
in 10 years an action by a victim of sex trafficking, compelling prosti-
tution, labor trafficking or aggravated labor trafficking brought under
section 483-bb(c) of the Social Services Law, provided that such 10-year
period shall not begin to run and shall be tolled during any period in
which the victim is or remains subject to such conduct.
Section 32 amends subdivision (a) of section 483-cc of the Social
Services Law, as added by Chapter 74 of the Laws of 2007, to provide
that as soon as practicable after a first encounter with a person who
reasonably appears to be a human trafficking victim to an established
provider of social or legal services designated by the Office of Tempo-
rary and Disability Assistance (OTDA), the Office for the Prevention of
Domestic Violence or the Office of Victim Services in addition to a law
enforcement agency or district attorney's office, the law enforcement
agency or district attorney's office shall notify OTDA and the Division
of Criminal Justice Services (DCJS) that such person may be eligible for
services under this article or, in the case of an established provider
of social or legal services, shall notify OTDA and DCJS if such victim
consents to seeking services pursuant to this article.
Section 33 amends Section 14 of Chapter 74 of the Laws of 2007, amending
the Penal Law, the Criminal Procedure Law, the Correction Law, the
Social Services Law, and the Executive Law relating to human traffick-
ing, as amended by Chapter 24 of the Laws of 2011, is amended to provide
that this act shall take effect on the first of November next succeeding
the date on which it shall have become a law; provided that section
483-ee of the Social Services Law, as added by section eleven of this
act, shall take effect immediately and shall remain in full force and
effect until September 1, 2019 when the provisions of such section shall
expire and be deemed repealed.
Section 34 amends subdivision (p) of section 10.03 of the Mental Hygiene
Law, as added by Chapter 7 of the Laws of 2007, to add as a sex offense
aggravated patronizing a minor for prostitution in the first degree
under section 230.13 of the Penal Law, aggravated patronizing a minor
for prostitution in the second degree under section 230.12 of the Penal
Law, and aggravated patronizing a minor for prostitution in the third
degree under section 230.11 of the Penal Law. The section also replaces
the term "prostitute" with "person for prostitution."
Section 35 amends subparagraph (i) of paragraph (a) of subdivision 2 of
section 168-a of the Correction Law, as amended by Chapter 405 of the
Laws of 2008, to add as a sex offense aggravated patronizing a minor for
prostitution in the third degree under 230.11 of the Penal Law, aggra-
vated patronizing a minor for prostitution in the second degree under
section 230.12 of the Penal Law, and aggravated patronizing a minor for
prostitution in the first degree under section 230.13 of the Penal Law,
sex trafficking under section 230.34 of the Penal Law, and promoting
prostitution in the third degree under section 230.25 of the Penal Law
where the person prostituted is in fact less than 17 years old.
Section 36 amends paragraph (b) of subdivision 1 of section 168-d of the
Correction Law, as amended by Chapter 74 of the Laws of 2007, to replace
the term "prostitute" with "person for prostitution" and the term years
"of age" to "old."
Section 37 amends paragraph (c) of subdivision 4 of section 509-cc of
the Vehicle and Traffic Law, as amended by Chapter 400 of the Laws of
2011, to add to the enumerated offenses of which a person is convicted
that results in the disqualification for five years of such person from
operating a school bus aggravated patronizing a minor for prostitution
in the third degree under 230.11 of the Penal Law, aggravated patroniz-
ing a minor for prostitution in the second degree under section 230.12
of the Penal Law, aggravated patronizing a minor for prostitution in the
first degree under section 230.13 of the Penal Law, and promoting pros-
titution in a school zone under section 230.19 of the Penal Law.
Section 38 amends the Vehicle and Traffic Law by adding a new section
510-d to provide for the suspension for one year a class E driver's
license where the holder is convicted of a violation of section 230.20,
230.25, 230.30 230.32, 230.34 or 230.40 of the Penal Law and the holder
used a for hire motor vehicle to commit such crime. This section further
provides for the revocation of a class E driver's license when the hold-
er, who had his or her driver's license suspended as provided in this
subdivision within the last 10 years, is convicted of a second violation
of section 230.20, 230.25, 230.30 230.32, 230.34 or 230.40 of the Penal
Law and the holder used a for hire motor vehicle to commit such crime.
Section 39 amends section 2324-a of the public health law, as amended by
Chapter 260 of the Laws of 1978, to add to the enumerated offenses
patronizing a person for prostitution in the first degree under section
230.06 of the Penal Law, patronizing a person for prostitution in a
school zone under section 230.08 of the Penal Law, aggravated patroniz-
ing a minor for prostitution in the third degree under 230.11 of the
Penal Law, aggravated patronizing a minor for prostitution in the second
degree under section 230.12 of the Penal Law, aggravated patronizing a
minor for prostitution in the first degree under section 230.13 of the
Penal Law, and promoting prostitution in the first degree under section
230.32 of the Penal Law. Two or more convictions of any of the enumer-
ated offenses within a one-year period arising out of conduct at a
dwelling as defined shall be presumptive evidence of conduct constitut-
ing use of the premises for purposes of prostitution.
Section 40 amends subdivision 2 of section 715 of the Real Property
Actions and Proceedings Law, as added by Chapter 494 of the Laws of
1976, to add to the enumerated offenses patronizing a person for prosti-
tution in the first degree under section 230.06 of the Penal Law, aggra-
vated patronizing a minor for prostitution in the third degree under
230.11 of the Penal Law, aggravated patronizing a minor for prostitution
in the second degree under section 230.12 of the Penal Law; aggravated
patronizing a minor for prostitution in the first degree under section
230.13 of the Penal Law, and promoting prostitution in the first degree
under section 230.32 of the Penal Law. Two or more convictions of any of
the enumerated offenses within a one-year period arising out of conduct
at a dwelling as defined shall be presumptive evidence of conduct
constituting use of the premises for purposes of prostitution.
Section 41 amends subdivision 3 of section 231 of the Real Property Law,
as amended by Chapter 203 of the Laws of 1980, to add to the enumerated
offenses patronizing a person for prostitution in the first degree under
section 230.06 of the Penal Law, aggravated patronizing a minor for
prostitution in the third degree under 230.11 of the Penal Law, aggra-
vated patronizing a minor for prostitution in the second degree under
section 230.12 of the Penal Law, aggravated patronizing a minor for
prostitution in the first degree under section 230.13 of the Penal Law,
and promoting prostitution in the first degree under section 230.32 of
the Penal Law. Two or more convictions of any of the enumerated offenses
within a one-year period arising out of conduct at a dwelling as defined
shall be presumptive evidence of unlawful use of such premises and the
owner's knowledge of the same.
Section 42 amends subdivision 3 of section 840 of the Executive Law by
adding a new paragraph (f-1) to require the Municipal Police Training
Council to develop, maintain and disseminate, in consultation with OTDA
and DCJS, written policies and procedures regarding human trafficking
victims. Such policies and procedures shall include identification of
potential victims of human trafficking and information and/or referral
to appropriate social and legal services for human trafficking victims
in accordance with section 483-bb of the Social Services Law.
Section 43 amends the Executive Law by adding a new section 214-d to
require the Superintendent of State Police, in consultation with OTDA
and DCJS, to develop, maintain and disseminate to all members of the
State Police, including new and veteran officers, written policies,
procedures and educational materials relating to human trafficking
victims, including services available for such victims as referenced in
section 483-bb of the Social Services Law, and to establish and imple-
ment written procedures and policies in the event a member of the State
Police encounters an individual believed to be a victim of human traf-
ficking, which shall include the provision of information and/or refer-
ral to an appropriate provider of social and legal services to human
trafficking victims in accordance with section 483-bb of the Social
Services Law.
Section 44 sets forth the severability clause.
Section 45 provides that notwithstanding the provisions of Article 5 of
the General Construction Law, the provisions of section 483-ee of the
Social Services Law, as added by Chapter 74 of the Laws of 2007, are
revived and shall continue in full force and effect as such provisions
existed on August 31, 2013.
Section 46 sets forth the effective date as the ninetieth day after it
shall have become law; provided however that sections 32 and 45 of this
act shall take effect immediately.
JUSTIFICATION:
Since 2007, New York State has taken significant measures to hold
accountable sex and labor traffickers, sex tourism operators and others
who organize, promote, advance, support and patronize the trafficking
industry. The State has also taken important steps in recent years to
acknowledge that many individuals facing prosecution for engaging in
prostitution are, in fact, victims of human trafficking.
This legislation improves in several significant ways the State's
response to human trafficking by enhancing protection of and assistance
to victims of trafficking, particularly in instances of commercial sexu-
al exploitation of children, and increasing the accountability of buyers
and traffickers who are fueling the growth of this massive underground
industry. Conforming penalties. This bill creates the felony sex
offenses of aggravated patronizing a minor in the third degree (Penal
Law 230.11), the second degree (Penal Law 230.12), and the first degree
(Penal Law 230.13) to conform the penalties for patronizing with those
for statutory rape. Currently, an individual convicted of patronizing a
minor for prostitution receives a lesser penalty than one who rapes a
minor of the same age. For example, an 18-year old found guilty of
raping a 12-year old is convicted of a class B felony sex offense;
however, an 18-year old found guilty of patronizing a 12-year old is
convicted of a class E felony. This distinction undercuts the legisla-
tive finding, expressed in the Safe Harbor for Exploited Youth Act (the
"Safe Harbor Act"), that minors in prostitution are sexually exploited
children as defined in Social Services Law § 447-a(1). Imposing a lesser
penalty for individuals who pay to abuse suggests that the exchange of
money mitigates the magnitude of the offense.
Making the crimes of aggravated patronizing a minor sex offenses (amend-
ing Penal Law sections 60.13 and 70.80(1)(a)) also furthers the legisla-
tive goal of recognizing commercial sexual exploitation of children as a
form of child sexual abuse.
Consistency within the Penal Law. The bill creates consistency within
the Penal Law by aligning the ages of victims in each degree of patron-
izing a prostituted minor crimes with the age delineated in the corre-
sponding degree of rape offense. For the crime of patronizing a person
for prostitution in the second degree (Penal Law § 230.05), the age of
the victim is changed from less than 14 to less than 15, where the
patronizer is 18 years old or more. The crime of patronizing a person
for prostitution in the first degree (Penal Law § 230.06) is amended to
include an individual who is 18 years old or more and patronizes a
person less than 13 years old. The crime of promoting prostitution in
the second degree (Penal Law § 230.30) is amended to include situations
where the age of the promoter is less than 18 years old instead of under
16. The crime of promoting prostitution in the first degree (Penal Law §
230.32) is amended to include situations where the age of the child
promoted is under 13 instead of under 11, and where the child promoted
is under 15 and the person promoting the child is 21 years old or more.
The crime of compelling prostitution (Penal Law § 230.33) is amended to
include situations in which the child compelled is under 18 rather than
under 16 by a person 18 years old or more rather than 21 years old or
more. Lastly, a person less than 18 instead of less than 17 will not be
deemed an accomplice in promoting or compelling prostitution under Penal
Law § 230.35.
Affirmative defense to prostitution. This bill establishes sex traffick-
ing as an affirmative defense to prostitution (new § 230.01 of the Penal
Law). In 2010, the Criminal Procedure Law was amended to enable sex
trafficking victims to vacate prostitution convictions (§ 440.10(1)(i)).
Providing an affirmative defense to prostitution where the defendant
asserts that he or she is a victim of sex trafficking will prompt
defense counsel to investigate such circumstances, and to bring the
matter to the attention of the prosecutor and the court. Such preemp-
tive advocacy would further the legislative intent expressed in the 2010
amendment, contribute to the protection of victims and the reduction of
trafficking, and obviate the need for later post-conviction challenges.
Referral of services by providers. Accessing social services is crit-
ically important for human trafficking victims. Established providers of
social and legal services are often the first to come into contact with
victims and develop trusting relationships with them. It is appropriate
that these providers, in addition to law enforcement and district attor-
neys, be able to make referrals for needed services. This bill amends
the Social Services Law (§ 483-cc) to expand the scope of persons
authorized to make such referrals to include designated established
providers of social or legal services.
Enhanced penalties for trafficking. Sex and labor trafficking are seri-
ous crimes that devastate the lives of victims. Sex trafficking victims
are subjected to rape, frequently over and over, on a daily basis. Labor
trafficking victims endure forced labor, often for prolonged periods of
enslavement. The penalties for trafficking should be commensurate with
the severity of the offenses. The bill designates certain types of sex
trafficking as a Class B violent felony and designates certain types of
labor trafficking a Class D violent felony (Penal Law § 70.02). The bill
also creates a new offense of aggravated labor trafficking, a Class C
felony, where a person compels or induces another to engage in labor or
recruits, entices, harbors, or transports such other person to engage in
labor by means of intentionally unlawfully providing a controlled
substance to such person with intent to impair such person's judgment
(Penal Law § 135.37).
Including patronizers in the School Zone law. In his memo in which he
signed into law the legislation that enhanced the penalties for prosti-
tution in a school zone and promoting prostitution in a school zone,
Governor Cuomo called attention to a gap in the bill, namely, that it
failed to "provide a complete, fully effective solution to the problem
it is designed to address" by omitting patronizers. The Governor urged
the Legislature to "enact similar enhanced penalties for patronizing a
prostitute within a school zone, in order to protect our children." This
bill amends the Penal Law (§ 230.08) consistent with the Governor's
recommendation.
Holding livery and limousine drivers accountable. Livery and limousine
drivers, many unlicensed, have become central players in the trafficking
of human beings. This growing phenomenon was the focus of a joint hear-
ing of the New York City Council's Women's Issues and Public Safety
Committees in 2012. Amending the Penal Law to include the use of a vehi-
cle for the purpose of advancing prostitution to constitute the offense
of permitting prostitution under Penal Law § 230.40 will better ensure
that livery and limousine drivers will be prosecuted for their crimes.
In addition, by providing for the suspension and revocation of class E
driver's licenses where the holder is convicted of a violation of
promoting prostitution, sex trafficking or permitting prostitution
offenses and the holder used a for hire vehicle to commit such offense
will enable us to more effectively limit the use of a vehicle in prosti-
tution.
Eliminating the stigma inherent in the Penal Law. The use of the term
"prostitute" in the Penal Law unnecessarily stigmatizes a large group of
criminal defendants, many of whom are sex trafficking victims. The use
of the term "prostitute" is the only instance in the Penal Law where an
individual is identified by the crime he or she allegedly commits;
nowhere else does the Penal Law designate the criminal defendant by the
crime. For example, a criminal defendant is not referred to as a
"murderer," "robber," or "burglar." Given the fact that the vast majori-
ty of the persons designated as "prostitutes" are women, the use of the
word "prostitute" reflects and contributes to gender bias. To eliminate
the stigma and bias, the bill replaces all references in the Penal Law
to "prostitute" with the phrase "person for prostitution."
Better utilization of investigatory tools. The bill enhances the devel-
opment of evidence-based cases against pimps and traffickers by amending
the Criminal Procedure Law (§ 700.05) to allow law enforcement to obtain
judicial warrants to conduct eavesdropping and video surveillance where
there is reasonable cause that the suspect manages, supervises, controls
or owns a house of prostitution, or prostitutes minors or otherwise
engages in activities that constitute promoting prostitution in the
third degree under Penal Law § 230.25 as well as in cases of aggravated
labor trafficking under section 135.37 of the Penal Law. Currently, law
enforcement can obtain judicial warrants to intercept conversations in
their investigations of traffickers only when they can establish coer-
cion or that the victim is under 16. Without the ability to conduct
surveillance of persons overtly promoting prostitution and the instru-
ments used in furtherance of such promotion, law enforcement has long
been stymied in ferreting out these perpetrators. With this amendment,
we will facilitate the investigation of prostitution rings and, at the
same time, identify and target human traffickers.
Providing victims civil remedies. Recognizing that persons compelled to
engage in prostitution or labor are victims and to assist these victims
in rebuilding their lives, this bill provides victims of sex traffick-
ing, compelling prostitution and labor trafficking the ability to
recover damages and reasonable attorney's fees from their traffickers
and those who should have known they were advancing or profiting from
sex trafficking, compelling prostitution or labor trafficking. With the
knowledge that victims face an arduous path to finally escaping the
control of their traffickers to engage in sex or labor, the bill
provides victims a period of 10 years in which he or she may bring a
civil action against his or her perpetrator, which period will not begin
to run and will be tolled during any period in which the victim is or
remains subject to engaging in sex trafficking, compelling prostitution
or labor trafficking.
Law enforcement training. Finally, to ensure that law enforcement is
aware of the circumstances in which an individual may be a victim of
human trafficking and of the services available to such victims, this
bill requires the Municipal Police Training Council and the Superinten-
dent of the State Police to develop, maintain and disseminate, in
consultation with OTDA and DCJS, written policies and procedures relat-
ing to the identification of human trafficking victims and referral to
appropriate social and legal services for services available for such
victims as referenced in section 483-bb of the Social Services Law.
LEGISLATIVE HISTORY:
A.2240D, 2013 and 2014 referred to Codes.
Same as S.5879B, 2013 and 2014 passed Senate both years.
A.9804, 2012 referred to Codes.
Similar to A.245A, 2011 and 2012 referred to Codes.
Similar to A.802, 2009 and 2010 referred to Codes.
Similar to A.10958, 2008 referred to Codes.
Same as S.7986, 2008 passed Senate.
FISCAL IMPLICATIONS:
None.
EFFECTIVE DATE:
Effective on the ninetieth day after it shall have become law, provided
that sections 33 and 45 of this act shall take effect immediately.
